First Nations On-Reserve Source Water Protection

Transcription

1 First Nations On-Reserve Source Water Protection Presentation by Theresa McClenaghan, Executive Director and Counsel Slides prepared by Barbora Grochalova, Student-at-Law Canadian Environmental Law Association Thames River Clear Water Revival First Nation Youth Stewardship Program Source Water Protection Toolkit Workshop August 13 th, 2015

2 What is CELA? The Canadian Environmental Law Association ( CELA ) is a non-profit public interest organization. CELA uses existing laws to protect the environment and advocate for environmental law reform. CELA is also a legal aid clinic and appears before tribunals and courts on behalf of low-income individuals, citizen groups, and not-for-profit organizations who otherwise would not be able to afford legal assistance. 2

3 Water protection in Ontario Walkerton, ON (2000) 7 people died, 2300 became seriously ill from bacterial contamination of drinking water Walkerton Inquiry finds inconsistent water quality standards apply across the province North Battleford, SK (2001) Kashechewan, ON (2005) Water crises caused partly by drinking water intake located downstream of sewage effluent First Nations reserves [have] some of the poorest-quality water in the province. There is no justification for permitting lower public health standards for some residents of Ontario than those enjoyed by others. - The Honourable Dennis O Connor, Report of the Walkerton Inquiry (p. 17, 487) Recommendations call for a multi-barrier, watershed approach. 3

4 Post-Walkerton Recommendations Watershed approach: includes all activities impacting water quality throughout the watershed Multi-barrier approach: from source water protection to treatment technology, distribution system maintenance, water quality monitoring, and emergency response planning If one barrier should fail, there are more safeguards to prevent contamination The first barrier is the protection of the sources of drinking water. Image source: CCME 2004, per Aboriginal Affairs and Northern Development Canada (link) 4

5 What is Source Water Protection (SWP)? Source water: Surface water or ground water Feeds private wells and municipal drinking water systems Examples: lakes, rivers, wetlands, underwater aquifers SWP: Preventing source water contamination or depletion Common threats include run-off from farms, sewage disposal, industrial waste, fuel storage tank leaks and others Easier and cheaper to protect, than to clean up a water source after contamination is found 5

6 Ontario Clean Water Act, 2006 CWA enacts Walkerton Inquiry recommendations regarding source water protection Applies to both groundwater and surface water used for drinking CWA requires Ontario communities to make plans to protect source water Source water protection committees are established based on watershed boundaries Broad consultation, including: Municipalities Conservation Authorities Property owners Farmers Industry Businesses Community groups Public health officials Source Protection Committees are also required to consult with First Nation communities in their area, and invite them to participate in the process 6

7 2007 Queen s Printer for Ontario 7

8 Ontario Clean Water Act, 2006 CWA allows First Nations Reserves to opt in to participate in Source Protection Planning if the reserve is inside a Source Protection Planning Area, or borders the Area CWA includes a non-derogation clause with regards to existing Aboriginal and treaty rights enshrined in the Constitution Band Council Resolution is needed to participate Jurisdiction and funding issues are not clear 8

9 SWP under the federal government Aboriginal Affairs and Northern Development Canada (AANDC), Health Canada, Environment Canada, and the First Nations all play a role in source water management on First Nations reserves AANDC has implemented a watershed multi-barrier approach, which aims to increase water quality on reserves Specific federal protocols guide the health and safety standards: Protocol for Centralised Drinking Water Protocol for Centralised Wastewater Protocol for Decentralised Water and Wastewater Our legal toolkit First Nations On-Reserve Source Water Protection includes links to the online resources mentioned, and many others. 9

10 SWP under the federal government First Nations On-Reserve Source Water Protection Plan Guide and Template provides a five stage process for communities to develop a SWPP to manage drinking water sources: Stage 1: Form your Source Water Protection Working Committee Stage 2: Complete your source water assessment Stage 3: Identify management actions to address potential risks Stage 4: Develop an implementation strategy Stage 5: Review the plan every 5 years Our legal toolkit First Nations On-Reserve Source Water Protection includes links to the online resources mentioned, and many others. 10

11 Safe Drinking Water for First Nations Act Federal law, came into force in 2013 The aim is to have the same drinking water quality and source water protection standards as the rest of Canada First Nations concerns include: - Potential to override existing by-laws and regulations - Potential impact on existing Aboriginal and treaty rights No regulations have been made yet, so the current regime of federal protocols continues to apply 11

12 Actions First Nations can take In order to regulate source water protection, First Nations on reserves have the option of: Enacting By-laws under the Indian Act Passing a Band Council Resolution (BCR) Developing a Land Management code 12

13 By-laws under the Indian Act First Nations can take a management role in SWP by controlling certain on-reserve activities, for example: Construction or regulation of wells Determine which types of land use are allowed close to water sources through zoning by-laws Wildlife conservation measures By-laws apply to everyone present on the reserve. By-laws have no application outside the reserve boundaries. By-laws can be enforced by the local policing agency or by-law enforcement officers. Violating a by-law can lead to a conviction and a fine. 13

14 By-laws under the Indian Act Proper steps have to be followed in order for a by-law to become official, including: The subject of the by-law has to fall within the authority of the First Nation, as covered by one of the provisions of the Indian Act The by-law must be approved by a majority of the Band Council Formal process has to be followed at the Band Council Meeting, and each step documented A by-law that is vague or unclear can be held invalid, so careful wording is important An overview of the requirements is available in the CELA publication First Nations On-Reserve Source Water Protection: A Legal Toolkit, including links to AANDC resources on by-law drafting 14

15 Band Council Resolution Unlike a by-law, which is a form of a federal law, a Band Council Resolution (BCR) is an administrative declaration Band Councils pass BCRs to take action in response to short-term situations that will likely not happen again For example, a Band Council may pass a BCR agreeing to hire an expert to see whether a fuel storage tank on reserve is leaking into the groundwater 15

16 Land Management Regime First Nations can expand their regulatory power by opting out of the 34 sections of the Indian Act that deal with land management The First Nations Land Management Act provides a Framework Agreement that must be signed by the First Nation and the AANDC Minister First nations can then develop a land code through a community approval process The community must vote to ratify an individual agreement between the Band and the Ministry, as well as the land code 16

17 Land Management Regime This process typically takes more than 2 years When completed, the First Nation has the power to: Administer their land Pass laws regarding the land, environment, and most resources Enforce the laws Land code gives First Nations more power to regulate for source water protection by going beyond the by-law powers of the Indian Act The process is longer and more complicated than enacting a bylaw 17

18 Exercise Inherent Jurisdiction Another option that many First Nation communities in Canada are considering is to exercise inherent jurisdiction over environmental matters by way of pre-existing aboriginal and treaty rights For example, see the workshop presentation from CELA at ernance_0.pdf 18

19 Contact Info Tel: and facebook.com 130 Spadina Avenue, Suite 301 Toronto, ON M5V 2L4 Unless otherwise specified, all of the images in this document were obtained from PublicDomainPictures.net, are in the public domain, and utilized for a non-commercial purpose. 19

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